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Bonifacio v. El Paraiso Food Market, Inc.

Supreme Court of New York, Second Department

August 7, 2013

Andrea Bonifacio, respondent,
v.
El Paraiso Food Market, Inc., et al., defendants, 85-87 Pitt Street Realty Corporation, appellant (and a third-party action). Index No. 9723/06

Gannon, Rosenfarb, Balletti & Grossman, New York, N.Y. (Lisa L. Gokhulsingh of counsel), for appellant.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant 85-87 Pitt Street Realty Corporation appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated April 26, 2012, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff allegedly was injured in February 2005 when she slipped and fell at or near the entryway of a store owned by the defendant 85-87 Pitt Street Realty Corporation (hereinafter Pitt Street Realty). She commenced this action against Pitt Street Realty and other entities. Pitt Street Realty moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that it had not created the defect and that it was an out-of-possession landlord without control of the premises and without any other duty to maintain or repair them. In opposition, the plaintiff contended, among other things, that the area where she fell was part of the public sidewalk and that Pitt Street Realty had a nondelegable duty to maintain the sidewalk under Administrative Code § 7-210.

The Supreme Court properly denied Pitt Street Realty's motion. There are triable issues of fact relating to, among other things, the precise location of the accident, and Pitt Street Realty's duty, if any, to the plaintiff (cf. Lanham v City of New York, 69 A.D.3d 678, 678).

BALKIN, J.P., LEVENTHAL, LOTT and SGROI, JJ., concur.


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